Defendant moves to dismiss the action on the basis that the Court lacks
jurisdiction over the claim. Defendant argues that the claim fails to provide
sufficient particularity “to give the court and parties notice of the
transactions [and] occurrences . . . intended to be proven and the material
elements of each cause of action,” as required by CPLR § 3013, and
fails to set forth the nature of the claim as required by Court of Claims Act
§ 11 (b), thus depriving the Court of jurisdiction. Court of Claims Act
§ 11 (b) provides that:

“The claim shall state the time when and place where such claim arose, the
nature of same, and the items of damage or injuries claimed to have been
sustained and the total sum claimed. . . .”

The claim alleges that claimant was injured on February 23, 2008, at 1:56 p.m.,
at the State University at Albany, 1400 Washington Avenue, Albany, New York,
“inside the State Quad Dormitory between Cooper Hall and Anthony
Hall.” The claim further alleges that claimant suffered a broken front
tooth as a result of the incident. With respect to the “nature of
same,” the claim states as follows:

“Personal injury sustained by Patricia Scorzello, claimant. Due to the
negligence of the State of New York University at Albany in that the claimant
was struck in the face and mouth by a defective door while walking through the
hallway of the University at Albany dormitory. The State University at Albany
was negligent in the ownership, maintenance and control of this door creating an
unsafe and hazardous condition to exist, without any warning signs. By allowing
this condition to exist actually or constructively caused the injuries to
occur.”

A claim against the State is permissible only as a result of the State’s
waiver of sovereign immunity and the statutory requirements conditioning suit
must therefore be strictly construed (Kolnacki v State of New York 8 NY3d
277, 280 [2007]). The Kolnacki court noted that the requirements of
section 11 (b) are “substantive conditions upon the State's waiver of
sovereign immunity” (quoting Lepkowski v State of New York, 1 NY3d
201, 207 [2003]) and that the failure to satisfy any of the conditions is a
jurisdictional defect (Kolnacki, 8 NY3d at 280-281). The Kolnacki
decision stresses that “nothing less than strict compliance with the
jurisdictional requirements of the Court of Claims Act is necessary”
(Kolnacki, 8 NY3d at 281).

The strict pleading requirements of Court of Claims Act § 11 (b) were
recently reiterated in Rivera v State of New York (2008 NY Slip Op 05609
[3d Dept 2008]):

“Statutory conditions placed on claims against defendant must be strictly
construed, mandating a dismissal for lack of jurisdiction if the claim does not
meet the substantive pleading requirements found in Court of Claims Act §
11 (b).”

The Rivera court, quoting Lepkowski (1 NY3d at 208) reminded
that:

“The Court of Claims Act does not require [defendant] to ferret out or
assemble information that section 11 (b) obligates the claimant to
allege.”

The standard of review in assessing whether a claim complies with section 11
(b) as to adequately stating the nature of the claim is well-settled:

“What is required is not absolute exactness, but simply a statement made
with sufficient definiteness to enable the State to be able to investigate the
claim promptly and to ascertain its liability under the circumstances. The
statement must be specific enough so as not to mislead, deceive or prejudice the
rights of the State. In short, substantial compliance with section 11 is what is
required . . . . Conclusory or general allegations of negligence that fail to
adduce the manner in which the claimant was injured and how the State was
negligent do not meet its requirements” (Heisler v State of State of
New York, 78 AD2d 767, 768 [4th Dept 1980]; seeCendales v State
of New York, 2 AD3d 1165, 1167 [3d Dept 2003]; Sega v State of New
York, 246 AD2d 753, 755 [3d Dept 1998], lv denied 92 NY2d 805
[1998]).

The instant claim fails to state how claimant came to be “struck in the
face and mouth by a defective door,” fails to state what was
“defective” about the door and fails to state in what manner the
defendant was “negligent.” Claimant has failed to comply with the
substantive pleading requirements of section 11 (b) and the Court therefore
lacks jurisdiction over the claim.

The claim’s deficiencies are similar to those found in Grumet v State
of New York (256 AD2d 441, 442 [2d Dept 1998]), in which the court
considered the sufficiency under section 11 (b) of both a notice of intention to
file a claim and a claim:

“[T]he notice of intention to file a claim only stated that the claimant
slipped and fell without any indication as to what allegedly caused him to slip
and fall. The claim merely alleged that the State was ‘careless, reckless
and negligent’. There was nothing in the language of either the notice of
intention to file a claim or the claim which would have alerted the defendants
as to the nature of the alleged negligence. Accordingly, the Court of Claims
properly granted the motion to dismiss.”

The claimant’s belated disclosure in her unsworn opposition to the
defendant’s motion to dismiss as to how the accident happened and why the
defendant was negligent is unavailing as the Court’s lack of jurisdiction
over the claim, as filed and served, may not be cured by amendment (Manshul
Constr. Corp. v State Ins. Fund, 118 AD2d 983 [3d Dept 1986]; Roberts v
State of New York, 4 Misc 3d 768 [Ct Cl 2004]).

The defendant’s motion to dismiss the claim is granted.

The claimant may have a potential remedy available pursuant to CPLR § 205
(a), which permits recommencement of a dismissed action under certain
circumstances, or Court of Claims Act § 10 (6), which provides that the
Court, upon application and in its discretion, may permit the late filing and
service of a claim “at any time before an action asserting a like claim
against a citizen of the state would be barred under the provisions of article
two of the civil practice law and rules.”

July 14, 2008Albany, New
York

HON. FRANK P. MILANOJudge of the Court of Claims

Papers Considered:

Defendant’s Notice of Motion to Dismiss, filed June 9, 2008;

Affirmation of Paul F. Cagino, dated June 6, 2008;

Statement of Patricia Scorzello, dated June 25, 2008, with attachments;